The Ohio General Assembly adjourned Wednesday without addressing an issue that the state’s top elections official said would prevent President Joe Biden from being placed on the ballot there, escalating a partisan clash that could result in the president not being on the ballot in all 50 states in November.
Frank LaRose, the Republican secretary of state, has said that he plans to exclude Biden from the ballot because he will be officially nominated after a deadline for certifying presidential nominees on the ballot. This is usually a minor procedural issue, and states have almost always offered a quick solution to ensure that major presidential candidates remain on the ballot.
The Biden campaign is considering suing the state in order to ensure Biden is on the ballot, while also searching for some other way to resolve the issue without moving the date of the nominating convention, according to a person with knowledge of the deliberations.
A legal fight could be expensive and arduous. The Supreme Court recently ruled that states could not bar Trump from running for another term under a constitutional provision, Section 3 of the 14th Amendment, that prohibits insurrectionists from holding office. But it took six months of legal wrangling before the court put that issue to bed.
Ohio is not considered a swing state — Trump won there with an 8-point edge in 2020 — but the Biden campaign could be drawn into a monthslong legal battle to ensure that the president is on the ballot in all 50 states.
A legislative fix, which would push back the certification deadline to accommodate the late date of the Democratic National Convention, stalled out this month as Republicans in the Ohio Senate tacked on a partisan measure that would ban foreign donations to state ballot initiatives. LaRose has previously said that passing the ban is the price that Democrats must pay to ensure that Biden is on the ballot and that he would otherwise enforce the law as written.
Charles Lutvak, a spokesperson for the Biden campaign, said that “Joe Biden will be on the ballot in all 50 states.”
“Election after election, states across the country have acted in line with the bipartisan consensus and taken the necessary steps to ensure the presidential nominees from both parties will be on the ballot. And this election is no different,” Lutvak said in a statement.
Ohio, an increasingly Republican state, passed temporary extensions to its certification deadline for President Barack Obama and Mitt Romney in 2012 and for President Donald Trump in 2020.
A similar issue with a certification deadline this year was resolved in Washington state by the Democrats offering a provisional certification of Biden’s nomination. But in a letter to the Ohio Democratic Party on Tuesday, LaRose rejected that solution, citing a legal opinion from the attorney general, who is also a Republican, that it would not be permitted.
LaRose wrote that he would “instruct boards of elections to begin preparing ballots that do not include the Democratic Party’s nominees” unless the party offered a “legally acceptable remedy” for the issue.
Republicans in the Ohio Senate advanced a bill that would resolve the issue but attached a rider that would ban foreign money in state ballot initiatives, which Republicans in the state blamed for the passage last year of a constitutional amendment enshrining access to abortion in the state.
Jason Stephens, the House speaker, has also been fending off a monthslong effort by some Republicans to oust him and needs support from Democratic lawmakers in the minority to stay in power. In remarks to the press Tuesday, Stephens said there was “just not the will” to pass a solution in the legislature.
Ohio Democrats denounced the lack of a legislative solution, and the chair of the state party asserted in a statement Tuesday that Republicans were trying to take Biden off the ballot.
“Republican politicians at the statehouse made clear that they want to take away Ohioans’ ability to choose who they want to be president,” Elizabeth Walters, the party chair, said in a statement to The Ohio Capital Journal. “Throughout this process, corrupt politicians in Columbus have politicized the process and used it to play political games.”